Judges push for curb on work ads

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Governments should be very transparent when spending public
money on advertising and it "would not be a bad constitutional
principle" to require more detail, the High Court judge Michael
Kirby said yesterday.

On the second day of the ACTU's challenge to the Government's
advertising of workplace reforms, Justice Kirby said the budget
papers had made "no mention whatever of this enormous
campaign".

He and Justice McHugh said they realised advertising was done in
all levels of government and by all political political
parties.

"The constitutional principle, it seems to me, is arguably that
it should be done with specific parliamentary approval and that for
this court to lay down when they have to go to Parliament, which
has to raise the money," Justice Kirby said.

"This is what battles and revolutions have been fought over -
control of the people's money, not levying money from the people
except with their consent in parliament."

The ACTU and Labor argue parliamentary approval was required for
the ads and there was no entry in the budget that justified the
spending. The Government says it had authority because money was
set aside to promote "higher productivity, higher-pay workplaces".
It also argued yesterday that advertising fell within its running
costs.

"Maybe that is an understanding that has to be stopped in its
tracks," Justice Kirby said.

"Advertising for propaganda for something which is not yet on
the statute books and is still being conceived. It is a horse of a
different colour … it is not only a horse now - it is a whole
herd of them."

While Justices McHugh and Kirby continued on from their stern
examination of the Government's case on Monday, there was some
relief from Justice Ian Callinan. He said the campaign "may well be
a proper incidental activity undertaken by the Government [in] the
development of a workplace reform package which implements the
Government's policy agenda".

His comment came as the Commonwealth Solicitor-General, David
Bennett, QC, argued the $5 million spent to date fell squarely
within the "higher productivity" outcome.

Mr Bennett said encouraging acceptance of the reforms "must
include negating discouragement" and that Parliament was "free to
determine the degree of specificity".

He argued that it would be impractical to grant an injunction
and that the shadow attorney-general, Labor's Nicola Roxon, had no
standing to join the ACTU's challenge.

The problem of how to proceed if the ACTU succeeds has troubled
the court on both days.

Justice McHugh conceded the ACTU "cannot get an injunction
restraining you from advertising, they cannot get an injunction
restraining the department … from spending money in respect
of industrial relations, and formulating some relief that they seek
is extremely difficult".